Can an employee who left a job site to get food claim workers' compensation?

Truck driver has serious fall, claims injury occurred during scope of employment

Can an employee who left a job site to get food claim workers' compensation?

A Texas court recently ruled that an employee’s actions did not amount to a deviation taking him outside the scope of his employment because the evidence showed that his employer permitted him to leave to get food and drink.

The plaintiff in this case worked as a commercial truck driver for Commercial Metals Company. In the early morning hours of a day in February 2017, he drove his work truck from Houston to a job site in Rosenberg, Texas.

As the plaintiff was waiting for the truck to be unloaded, he decided to get money and something to eat and drink for breakfast. He walked across a railroad bridge, fell 25 feet from the railroad track onto Highway 59, and suffered serious injuries.

The plaintiff filed a claim for workers’ compensation for his injuries. He alleged that the injury occurred in the course and scope of his employment.

Read more: Delivery driver alleges ankle injury after jumping from work truck

American Zurich Insurance Company, the workers’ compensation insurance carrier, opposed the claim. The plaintiff did not sustain a compensable injury because he was not injured in the course and scope of his employment, the insurer said.

The Texas Department of Insurance Division of Workers’ Compensation held a contested hearing. The plaintiff testified that he worked 12-to-14-hour daily shifts, usually from 5:00 a.m. to around 5:30 p.m, and that his truck had no bathroom or refrigerator for storing food.

The plaintiff and another truck driver who worked for the same employer and who performed the same duties testified that they understood that the company allowed its truck drivers to get food and to use bathroom facilities during their daily shifts while they were on duty.

The tribunal ended up siding with the insurer. The plaintiff appealed.

The trial court issued a summary judgment in the plaintiff’s favor. It found that the plaintiff sustained his injuries while he was acting in the course and scope of his employment and had a disability from the date of his injury until the date of the contested hearing.

Injury is compensable

In the case of American Zurich Insurance Company v. Kelvin Miller, the Texas First Court of Appeals affirmed the judgment of the trial court. The plaintiff sustained a compensable injury because he was acting in the course and scope of his employment when the accident occurred, the appellate court said.

First, the appellate court ruled that the personal comfort doctrine was applicable in these circumstances. This legal doctrine states that an employee acting in the course of his employment may perform acts of a personal nature that one might reasonably do for health and comfort, such as quenching thirst or relieving hunger.

According to the appellate court, the evidence showed the following:

  • Leaving the truck to find food and drink was a reasonable expectation of the plaintiff’s employment
  • The employer knew about this activity and made no prohibitions against it
  • The plaintiff was waiting for his truck to be unloaded at the job site when he decided to cross the railroad bridge to get cash and breakfast
  • His attempt to get money to buy food did not prevent him from performing his job duties and did not show an intent to temporarily abandon his job

Second, the appellate court rejected the argument that the plaintiff’s decision to leave the truck unattended at the job site to run a personal errand of getting cash and breakfast amounted to a significant personal deviation from his job duties.

The plaintiff’s actions were not a deviation, given that the employer allowed the plaintiff to leave his truck to get food and drink and given that he would not have chosen to do so if not for his job obligations, which required him to wait during the unloading of the truck, the appellate court explained.

Lastly, the appellate court disagreed with the argument that the plaintiff’s injury was not compensable because he committed a misdemeanor when he trespassed on private railroad company property to get food and drink.

Assuming that the plaintiff was trespassing at the time, there was no evidence showing that the commission of a misdemeanor would make an injury not compensable under the Workers’ Compensation Act, the appellate court said.


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